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An appellate court has upheld a nearly half-million dollar malpractice verdict against a South Florida attorney and his former law firm whose one-time client was brutally attacked in a gas station robbery and who claimed the lawyers erred badly in his original premises liability suit. The legal advice and professional performance of James D. Robinson and the now-defunct law firm Spence Payne Masington & Needle of Miami failed to meet the standard of care they owed their client George Kates, a unanimous 4th District Court of Appeal panel concluded Wednesday. The appellate court essentially found that the lawyers’ defense that the trial judge erred in his jury instructions was beside the point. Robinson, then an associate, and Spence Payne represented Kates in a personal injury lawsuit against O.K. Shell Corp., a Florida corporation that leased a gas station in northwest Miami. Kates was attacked there in the early morning of Dec. 28, 1992, as he was buying fuel. He suffered head injuries so severe that he required three operations. Initially, the suit also named Shell Oil Corp., the Delaware-based franchiser firm. But Kates’ lawyers told him he could collect no money from Shell Oil Corp. because of a change in Florida law that limited the liability of franchisers to people injured at gas stations. Because O.K. Shell had no assets, “Spence Payne decided not to invest additional time and money in this lawsuit,” according to the 4th DCA decision, which was written by Judge Fred A. Hazouri. “They advised Kates that no other persons were liable for his damages and recommended that Kates enter into a consent final judgment with O.K. Shell Corp.” in the amount of $1 million. After Kates did as they suggested, Spence Payne told Kates that nothing more could be done for him. Kates then hired another attorney, Miami solo practitioner Scott Jay, to try to collect a portion of the $1 million judgment. In the course of Jay’s efforts, he discovered that at the time of the assault on Kates, the gas station actually was leased to two partners, Amancio Alonso and Juan Acosta Sr. who also could have been named as defendants in Kates’ original negligence suit. It turned out that this information was contained in the Spence Payne files of the case, but the law firm had not acted on it. In 1999, Kates filed a professional negligence suit against Robinson, Spence Payne and Jay. He claimed that if he had known about Alonso and Acosta, he would not have entered into the consent judgment with O.K. Shell. Instead, his suit said, he would have sued the two lessees operating the gas station and could have collected money from them either by way of a settlement or at trial. The malpractice suit was first heard in 2000 by Broward Circuit Judge Robert Lance Andrews, who dismissed the case against Robinson, Spence Payne and Jay with prejudice on the basis that it was not sufficiently established that the lawyers’ alleged negligence was the proximate cause of Kates’ loss. But the 4th DCA reversed that decision in 2001 with regard to Robinson and Spence Payne on the grounds that they failed to sue all the potentially liable parties and failed to advise their client of the existence of the lessees. The dismissal of the case against Jay was upheld. In a subsequent jury trial before Broward Circuit Judge Alan Kornblum, Kates won a $485,000 award against Robinson and Spence Payne. HARMLESS ERROR In their appeal of that decision, Robinson and Spence Payne claimed that Kornblum erred by failing to instruct the jury that only the possessor of the premises — the gas station where Kates was injured — had a duty to take reasonable care to prevent the attack. They also charged that the judge erred by not permitting their expert witness on the standard of care to testify on this point. But the 4th DCA rejected those arguments. “The defendants’ entire basis for relief in this matter is the faulty premise that all of the evidence showed that the station was in the exclusive possession and control of O.K. Shell Corp.,” the 4th DCA panel said. It noted, however, that the jury, in response to formal questions from the judge, specifically responded that O.K. Shell was not in possession of the station and that Alonso and Acosta in fact were. Therefore, the 4th DCA panel concluded, “even if it was error for the trial judge to fail to instruct the jury as requested by the defendants, it was harmless error. Likewise, prohibiting the defendants’ standard of care expert to opine as to what the ‘case law’ is on the premises liability issue, if error, is also harmless error.” Miami lawyer Warren R. Trazenfeld, who represented Kates in the appeal, said the 4th DCA’s latest decision should finally bring the case to a close after more than a dozen years. “You never know what the other side will do,” he said, “but there is no basis for a new appeal.” Trazenfeld said the former partners are personally liable for the malpractice verdict along with Robinson, who is now a solo practitioner in Fort Lauderdale, Fla. The once nationally prominent firm of Spence Payne Masington & Needle broke up in the mid-1990s. Robinson and former name partners J.B. Spence and R.W. Payne Jr. could not be reached for comment. But Andrew Needle, who now practices at a small firm in Miami, disagreed with Trazenfeld’s statement that the former partners are personally liable for the verdict. He said that only Robinson and the Spence Payne firm were named as defendants in the case, and that the firm was covered by insurance.

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